Section 170. Husband and wife

A. Generally. Where a husband and wife file separate federal income tax returns, their Virginia taxable incomes must be separately determined either by filing separate Virginia returns or by electing to file separately on a combined Virginia return. Where a husband and wife file a joint federal income tax return, they may elect to either: (1) file a joint Virginia return and compute their Virginia taxable income jointly; or (2) compute their Virginia taxable incomes separately on a combined return. Where only one spouse has income, either joint or separate returns may be filed; where both spouses have income they may file either jointly or separately on a combined return. If neither spouse files a federal return, they may elect to compute their Virginia taxable income either jointly or separately.

B. Husband and wife filing separately.

1. Generally. A husband and wife may elect to file separate Virginia returns or file separately on a combined return even though they file a joint return for federal purposes. When such an election is made, the rules set forth in subsections 2 through 7, following, must be used.

2. Income. Items of income must be allocated to the spouse who earned the income or to whose property the income is attributable.

3. Business deductions. Deductions from FAGI with respect to trade, business, income production or employment which are allowable in computing Virginia taxable income shall be allocated to the spouse whose trade, business income, or employment generated such deduction.

4. Nonbusiness deductions. Nonbusiness deductions are those allowable in computing Virginia taxable income which do not arise from the conduct of a trade or business, the production of income, or employment. Nonbusiness deductions may be allocated between the husband and wife as they mutually agree. For the allocation of deductions in the case of a married couple, both of whom are not residents, see 23VAC10-110-190.

5. Standard deduction. Where a husband and wife must use the Virginia standard deduction rather than itemizing deductions in computing Virginia taxable income, such deduction may be allocated between spouses as they mutually agree.

6. Personal exemptions. The personal exemptions allowed for federal purposes may be allocated between husband and wife as they mutually agree with the result that the deduction attributable to such exemption may be similarly allocated. However, the personal exemption allowed an individual and the additional exemptions for blind taxpayers and taxpayers 65 years and older must be allocated to the taxpayer to whom they relate.

7. Failure to agree on allocations. Where a husband and wife fail to agree on the allocation of deductions or exemptions as provided in subsections 4, 5, and 6 above, such allocations will correspond to federal treatment of the items involved.

Historical Notes

Derived from VR630-2-324; adopted September 19, 1989; amended, eff. January 1, 1985, with retroactive effect according to Va. Code § 58-48.6 (recodified as Section 58.1-203).

Statutory Authority

§§ 58.1-203 and 58.1-324 of the Code of Virginia.